Thursday, June 02, 2016

TTAB Test: Which of these Three Section 2(d) Refusals Was Reversed?

I once heard a TTAB judge say that the outcome of most Section 2(d) likelihood of confusion cases can be predicted just by looking at the marks and the identified goods/services, without more. Well, try your luck on these three appeals. Which one resulted in a reversal? [Answer in first comment.]

I've argued the wine/beer dichotomy before. I don't think there are any winning arguments. What I don't understand, though, is if the USPTO takes the position that they are essentially the same goods (at least with respect to both containing alcohol, same channels of trade, generally same price-point) why are they in separate classes? Wine is ICL33 while beer is in ICL32.

Many attorneys have had success arguing that wine and beer are not related. It's all up to the evidence and the examining attorney's view on the matter (there is a clear "split" and clearly no mandate from on high as to how the examiners are to handle this).

We have a tool at TM TKO that instantly finds this sort of "unrelated goods" evidence - here's a smattering of the (pretty extensive) beer/wine coexistence: same mark, different owners. Beer marks come first, then wine.

SINGULARITYCommunity Beer Works, LLCReg: 4877654

SINGULARITYReg: 4838176Domaine Verdant LLC

EVELonerider Brewing CompanyReg: 4914349

EVEReg: 4881336K Vintners, L.L.C.

LEGENDSLegend Beverage, Inc.Reg: 3840825

LEGENDSReg: 3616067Vintage Wine Estates, Inc.

SPRINGBOARDNew Belgium Brewing Company, Inc.Reg: 3416157

SPRINGBOARDReg: 4708249Anderson & Middleton Company

There's way more - and plenty of case law to the contrary, too. Ensuring consistent outcomes isn't always the USPTO's strong suit!